JI SHAN INTERNATIONAL INVESTMENT LTD. v. RESOURCES MAIN ENTERPRISES LTD AND ANOTHER

JI SHAN INTERNATIONAL INVESTMENT LTD. v. RESOURCES MAIN ENTERPRISES LTD AND ANOTHER

Court found on the evidence that the confirmor acted mala fide in raising a requisition that did not go to the root of title and that delay in tendering was caused or rendered ineffective by the confirmor/vendor refusing or failing to give split-cheque instructions and by obstructive conduct; accordingly the sub-purchaser was entitled to specific performance and could complete in place of the confirmor, and the head agreement must be specifically performed by the vendor.

Citation
JI SHAN INTERNATIONAL INVESTMENT LTD. v. RESOURCES MAIN ENTERPRISES LTD AND ANOTHER
Parties
Plaintiff (a10949/96); Sub Purchaser: Ji Shan International Investment Ltd.; 1st Defendant (a10949/96); Defendant (a13602/96); Confirmor; Purchaser Under Head Agreement: Resources Main Enterprises Ltd.; 2nd Defendant (a10949/96); Plaintiff (a13602/96); Head Vendor; Owner of Suit Property: Douglas Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
25 August 1997
Case Number
HCA10949/1996
Procedural Posture
Civil Property Dispute Sale of Land; Claims for Specific Performance and Declarations / Judgment Following Consolidated Trial
Outcome
Claim of Ji Shan (A10949/96) allowed; Head Agreement ordered to be specifically performed. Action A13602/96 (Douglas v Resources Main) dismissed except limited declaration regarding application of confirmor's deposit.
Legal Topics
Specific Performance, Forfeiture of Deposit, Rescission, Tender and Completion, Requisition on Title, Privity of Estate, Costs
Source Language
EN
Property Contract Equity Civil Procedure Specific Performance Forfeiture of Deposit Rescission Tender and Completion +3 more

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Parties

Ji Shan International Investment Ltd.

Plaintiff (a10949/96); Sub Purchaser

Resources Main Enterprises Ltd.

1st Defendant (a10949/96); Defendant (a13602/96); Confirmor; Purchaser Under Head Agreement

Douglas Limited

2nd Defendant (a10949/96); Plaintiff (a13602/96); Head Vendor; Owner of Suit Property

Procedural Posture

Civil Property Dispute Sale of Land; Claims for Specific Performance and Declarations / Judgment Following Consolidated Trial

Legal Issues

  1. 1 Whether the sub-purchaser's deposit was validly forfeited for late tender
  2. 2 Whether specific performance should be ordered against the head vendor and/or confirmor
  3. 3 Whether the confirmor acted mala fide in raising requisitions affecting completion

Ratio Decidendi

Court found on the evidence that the confirmor acted mala fide in raising a requisition that did not go to the root of title and that delay in tendering was caused or rendered ineffective by the confirmor/vendor refusing or failing to give split-cheque instructions and by obstructive conduct; accordingly the sub-purchaser was entitled to specific performance and could complete in place of the confirmor, and the head agreement must be specifically performed by the vendor.

Court Disposition

Claim of Ji Shan (A10949/96) allowed; Head Agreement ordered to be specifically performed. Action A13602/96 (Douglas v Resources Main) dismissed except limited declaration regarding application of confirmor's deposit.

Orders

  • Douglas Limited to transfer the suit property to Ji Shan International Investment Limited within 14 days after payment by Ji Shan of the balance of the purchase price
  • 1st Defendant's solicitors to repay $180000.00 to the Plaintiff